Depostion of Diane Weinberger

8/6/2019 Depostion of Diane Weinberger

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FROM THE KORTE WARTMAN LAW FIRM

Page: 1

IN THE FIFTEENTH JUDICIAL CIRCUIT COURT IN AND FOR

PALM BEACH COUNTY, FLORIDA

CASE NO. 2009 CA 025833 (AW)

DLJ MORTGAGE CAPITAL, INC., )

)

Plaintiff, )

)

vs. )

)

KATY PEREZ, )

)

Defendant. )

)

-------------------------------------)



- - DEPOSITION

OF DIANE WEINBERGER, TAKEN

AT THE INSTANCE OF THE DEFENDANT

- - West

Palm Beach, Florida

Tuesday, July 12, 2011

2:30 p.m. - 2:54 p.m.

- - Florida

Court Reporting 561-689-0999

Page: 2

APPEARANCES:

WEITZ & SCHWARTZ, P.A.

Suite 204

900 S.E. 3rd Avenue

Fort Lauderdale, Florida 33316

Attorneys for the Plaintiff



BY: STEVEN C. WEITZ, ESQ.

MARK HOLLIDAY, ESQ.

Select Portfolio Servicing, Inc.

Vice President, Senior Counsel

3815 S. West Temple

Salt Lake City, Utah 84115

KORTE & WORTMAN, P.A.

Suite 102

2041 Vista Parkway

West Palm Beach, Florida 33411

Attorneys for the Defendant

BY: NANCY JACK, ESQ.

Florida Court Reporting 561-689-0999



Page: 3

I N D E X

WITNESS: PAGE

DIANE WEINBERGER:

Direct Examination by Ms. Jack 4

EXHIBITS

Defendant's Exs. 1 thru 6 for i.d. 4


Page: 4

The deposition of DIANE WEINBERGER was taken

before me, Phillip W. Loter, RMR, Notary Public, State

of Florida at Large, at Suite 102, 2041 Vista Parkway,

in the City of West Palm Beach, County of Palm Beach,

State of Florida, beginning at the hour of 2:30 p.m.,

on Tuesday, July 12, 2011, pursuant to the Notice filed

herein, at the instance of the Defendant in the

above-entitled cause pending before the above-named

Court.



(Thereupon, the proffered documents

were marked Defendant's Exhibit

Nos. 1 - 6 for I.D. only.)

THEREUPON,

DIANE WEINBERGER,

being by me first duly sworn to testify the whole

truth, as hereinafter certified, testified as follows:

DIRECT EXAMINATION

BY MS. JACK:

Q. Okay. Can you tell me your full name and

spell your last name.

A. Diane Weinberger, W-e-i-n-b-e-r-g-e-r.

Q. And if you can just give me your

educational background, your full educational

background.




Page: 5

A. I have two years of college and extensive

mortgage training with a variety of different classes.

Q. And work history?

A. I have worked 11 years for Select Portfolio

Servicing.

Q. And what do you do at Select Portfolio

Servicing?

A. I am the director of the customer assurance

review department.

Q. And can you give me some idea of what your

job duties entail?

A. Well, I oversee a group of individuals who

review every loan before it's referred to an attorney

for foreclosure action.

Q. Do you underwrite files?

A. No.

Q. Do you service files?

A. Yes.

Q. And what does servicing a file entail?

A. Well, it's collecting payments,

communication with the customer, providing notices,



disbursing escrow amounts. Anything that requires

attention to a loan file to manage it.

Q. Okay. Would you classify your job as

litigation support?


Page: 6

A. No.

Q. When did you first become involved in the

case of DLJ Mortgage Capital versus Katy Perez?

A. I think I started looking at the file about

three weeks ago.

Q. And why did you become involved?

A. I was asked to be a witness and a deponent

in the case.

Q. And did you review any documents before you

came?

A. Yes.

Q. What did you review?

A. I reviewed the note, the mortgage, a

demand, notice of default letter, contact history,

payment history.

Q. Anything else?

A. Not that I recall. I did look over the



interrogatories and the responses.

Q. But you were not the person who completed

the interrogatories?

A. No.

Q. Okay. So you have been asked here for

deposition on several fronts. One is regarding the

transfer of the note. Also regarding calculations of

damages and amounts due and owing. Questions regarding


Page: 7

the lost note, if lost note circumstances exist. And

then questions regarding the trust agreements, PSA,

custodial agreements and servicing agreement.

It's my understanding -- is this -- does

DLJ Mortgage Capital hold this note or mortgage -and/

or mortgage as trustee for any other entity?

A. No.

Q. So as far as you know there is no trust



agreement, pooling and servicing agreement or custodian

agreement that relates to this note and/or mortgage?

A. That's correct.

Q. As regards the note and mortgage do you

know as regards the note who was the original lender on

the note?

A. Silver State Mortgage.

Q. And I am going to direct your attention to

Exhibit 1, which is a copy of the complaint, and to

page two of it on what -- actually, page two of the

complaint. Keep going. Look at the numbers at the

bottom.

Okay. About midway down, paragraph number

five it says the plaintiff owns and holds the note and

mortgage via assignment.

Are you aware that DLJ Mortgage Capital

holds this note via assignment?


Page: 8



A. Yes, they do hold the note.

Q. And do you know who assigned the loan to

DLJ?

MR. WEITZ: Objection. Form.

MS. JACK: Okay.

MR. WEITZ: The question is vague. You

can answer though if you -

THE WITNESS: In what context? Could

you be specific?

BY MS. JACK:

Q. Okay. There is a promissory note which is

being sued upon. That note you have just said was -the

original lender on that note was Silver State

Financial Services.



DLJ is claiming that it has acquired that

note via assignment. From whom did DLJ acquire the

note via assignment?

A. I don't know the exact name of the entity

that they would have acquired it from.

Q. Do you know if that entity was Silver State

Financial Services?

A. No, I don't believe that it was.

Q. Are you aware of any other assignment of

this note other than that -- other than the assignment

in which DLJ obtained the note?




Page: 9

A. No.

Q. Do you know where the assignment to DLJ is

documented?

A. Well, we have the original note filed with

the court.

Q. And is there an endorsement or assignment

indicated on that note?

A. Yes, there is an endorsement in blank.

Q. It's a blank endorsement signed by whom?

From whom?

A. You know, I would honestly have to review

it again. But I believe, if I recall, it was an

assignment endorsement from Silver State.

Q. And is that the only endorsement on the

note?

A. Yes, as I recall, the best of my knowledge,

that is correct.

Q. Do you know who had possession of the note

from the time it was made by Silver State until it came

into DLJ's possession?

A. No.

Q. Do you know when it came into DLJ's

possession?



A. No, not exactly.

Q. I am going to ask that question just a




Page: 10

little bit more specific.

Do you know when it came into -- when DLJ

gained physical possession of the note?

A. No.

Q. If you look at the complaint, Exhibit 1

again, and continue on to page four there is a count

two which is a count for a lost, stolen or destroyed

note.

Do you know how the note was lost?

MR. WEITZ: Objection. Assuming

evidence not established, facts not established.

BY MS. JACK:

Q.

Okay. But she can answer. Do you know?

MR. HOLLIDAY: If she knows.



THE WITNESS: Well, the note is not

lost.

BY MS. JACK:

Q. Okay. But when the plaintiff filed its

complaint it alleged in its complaint that the note was

lost.

A. I really can't -Q.

Do you know why the plaintiff alleged the

note was lost?

A. I do not know. The note is not lost.

Q. I am going to ask this. So do you know

Florida Court Reporting

561-689-0999



Page: 11

when the plaintiff found the note after it had alleged

that the note was lost?

A. I don't know that it ever was lost.

Q. Do you know why the plaintiff would allege

the note was lost if it was not lost?

MR. WEITZ: Objection. You're calling

for speculation here.

MS. JACK: I asked her if she knew.

MR. HOLLIDAY: It's also outside of the

scope of the deposition notice involved.

MS. JACK: The deposition notice is

regarding the circumstances of a lost note if such

circumstances exist.



And the plaintiff did allege in its

complaint that there was a note lost.

MR. WEITZ: And we have already

established through the testimony that it was -- that

the note is not lost. And it's been filed with the

court already, which is of record in this case.

MS. JACK: I would argue that you have

established that a note has been filed with the court,

but not necessarily that it was not lost. It may have

been found.

MR. WEITZ: I stand by my objection, but

you can answer if you know.




Page: 12

THE WITNESS: There is no indication

that the note was lost, to my knowledge.

BY MS. JACK:

Q. Do you know when the original note was

filed with the court?

A. I do not know the exact date, no.

Q. And do you know -- scratch that.

Okay. We are also here to ask questions

regarding the calculation of damages and amounts due

and owing. So I am going to move on to asking

questions about that.

Can you tell me how much the plaintiff is

seeking in damages?

A. I would have to review the affidavit and

the documents to give you the exact figure.

Q. Well, there was an affidavit filed

originally when there was -- initially in the case when



there was a final summary judgment of foreclosure

entered.

A. Yes.

Q. Okay. Would you like to review that?

A. Yes. That would be -- I believe I signed

it as well.

Q. Okay. So you didn't review any other

documentation about financial records or balance due?




Page: 13

A. Well, yes. Oh, yes. I did. Yes, I did.

I reviewed the payment history and I reviewed the

screens that indicated and supported the affidavit that

I signed.

Q. Okay. So the amount that the plaintiff is

seeking is based to some extent on that initial

affidavit that was filed?

A. It would be. Of course, there would be

interest added and any other additional attorney fees.

But yes, that would be correct.

And I believe it's somewhere in the range

of 357,500.

Q. Okay. If you look at, this is Exhibit 6

and page two, there is -- this is actually the final

summary judgment of foreclosure and this is the amount

that was awarded in that case.

The unpaid principal balance appears

287,900.



A. Yes, that is correct.

Q. You agree with that number?

A. Yes, I do. That is what I did review in

our records.

Q. And how would your -- how would you arrive

at that number? How was that number calculated?

A. Specifically I don't know what your




Page: 14

question is. It's in our records and those records are

maintained and entered in on a regular basis by

individuals who have knowledge.

So I am not quite sure what your question

is.

Q. My question is is the plaintiff is suing

our client for an amount of unpaid principal balance of

$287,900.

How does the plaintiff arrive at the number

287,900 as the unpaid principal balance?

A. Well, I don't know exactly how it's arrived

at because we use software that would calculate all

that information.

But it would be based on the payments that

the customer had made and any kind of reduction to the

principal balance. But that is the amount. That is

the unpaid principal balance.



Q. Okay. So you do not by hand or by personal

calculations figure out the amount of the unpaid

principal balance?

A. No.

Q. It comes from the computer?

A. Well, it comes from the records that are

kept by Select Portfolio Servicing.

Q. Okay. And the accrued -- referring to




Page: 15

Exhibit 6, the accrued interest, the second line in

there is $20,823.49.

Would you agree with that number?

A. Yes. At the time this was done I would

agree with that. Of course, there would be more since

then.

MR. WEITZ: I just want to clarify one

thing for the record. There was some talk of an

exhibit being an affidavit. This is not the affidavit.

MS. JACK: No.

MR. WEITZ: This is the final judgment.

MS. JACK: Final judgment, yes.



MR. WEITZ: Just want that clear.

BY MS. JACK:

Q. Sure. How do you come -- arrive at the

number or the amount of interest that is accrued and

owing?

A. Well, again, that's calculated with, you

know, sophisticated software that helps determine that.

That is not a calculation by hand.

Q. Okay. Do you know whether this note was a

fixed rate or an adjustable rate?

A. It was an adjustable rate mortgage.

Q. And your software would have taken into

consideration adjustments in rate -Florida

Court Reporting 561-689-0999



Page: 16

A. Yes.

Q. -- for determining -A.

Yes.

Q. Is there any independent verification

system for the numbers and amounts that are given to

you by your software for the balance and the interest?

A. At what point in the life of the loan are

you referring to?

Q. I would say across the life of the loan.

Is there any way to -- for your system, whether it's

manual or a computer, to verify that -- or to quality

control, so to speak, that the numbers in the system do

in fact reflect payments from the consumer or

adjustments in interest?

Is there a quality control system?

A. Yes. Upon boarding the loan into our

system all of that is validated and our software is

calibrated correctly to verify that information.

We use a standard form of mortgage software

that's common in the industry to do so. On top of that

our company does have extensive quality controls on



information.

Q. What's the name of your -- the computer

system or the software?

A. It's called MSP, Mortgage Servicing




Page: 17

Platform. It's a commonly used system in the industry.

Q. And is that the system that your company

has used since you began servicing this loan?

A. Yes, that's correct.

Q. Do you know what other amount -- you can

refer to Exhibit 6, that list of the amounts that go

into coming up to the final total judgment.

And do you know if there are other amounts

that are -- not amounts. Other items that may be

considered in the final judgment that are not on this

list?

Is there property inspection fees? Can you

think of anything else that is not in this list that

could be part of the total judgment?

A. Yes. There could be a BPO or an inspection

or two. In my review of the records I did notice a BPO

and a couple of inspections.



Q. Okay. Do you have access to the

origination file for this loan?

A. It's possible that we have origination

docs, and I could have access to that if we do have

them.

Q. Okay. Just going to go back to the

interest for one more minute.

In terms of calculating the interest do you




Page: 18

know whether your system -- how it determines what the

interest -- what interest should be charged on an

adjustable rate mortgage to determine what the final

amount -- the total judgment owed is?

In other words, does it -- well, let me ask

it more broadly.

Do you know how your system determines, how

it calculates the interest on an adjustable rate

mortgage to come up with a total judgment amount that

is owed?

A. Well, I am not an expert in the IT world,

so I couldn't give you the programming ins and outs as

to how that's calculated.

However, we have an entire department and

we have qualified people that do run the computer

system and enter in the correct information to

calculate that.



Q. So as far as you know in order for the

computer system to determine the correct rate of

interest across the life of an adjustable rate loan it

would require manual entry?

A. Well, as I indicated to you, I am not an

expert in the IT department and how it's entered in. I

just know that it's extremely sophisticated hardware

and programs that do calculate these things correctly.




Page: 19

Q. Referring again to Exhibit 6 at page two,

do you note there are escrow amounts related to this?

A. Specifically taxes, insurance?

Q. Yes.

A. Yes, there are.

Q. There are. Okay. Do you have any idea

what those amounts would be currently?

A. Well, again, I would have to review

documents to tell me specifically. But the range that

I did review was a little over $8,000 for both

insurance and taxes.

Again, specifically I would have to review

my records in front of me.

Q. Do you know if an affidavit of amounts due

and owing has been prepared subsequent to the -A.

I don't know that it was subsequent or not.

I would have to review the date.

MS. JACK: Okay. I think that's it. I

don't have any further questions.



MR. HOLLIDAY: No.

MR. WEITZ: We don't have any questions.

I guess we will read.

(Thereupon, at 2:54 p.m. the foregoing

proceedings were concluded.)




Page: 20

CERTIFICATE OF OATH

THE STATE OF FLORIDA

COUNTY OF PALM BEACH

I, Phillip W. Loter, the undersigned authority,

certify that DIANE WEINBERGER personally appeared

before me and was duly sworn.

WITNESS my hand and official seal this 14th day of

July 2011.

(Signer's identity unknown) Signed by Phillip Loter <[email protected]> Time:

2011.07.15 13:57:46 -04'00' Reason: I am the author of this document and attest to the integrity of this

document. Location: West Palm Beach, FL

_______________________________

Phillip W. Loter

Notary Public, State of Florida

My Commission #DD0858406

Expires: April 8, 2013






Page: 21

C E R T I F I C A T E

THE STATE OF FLORIDA, )

)

COUNTY OF PALM BEACH. )

I, Phillip W. Loter, Registered Merit

Reporter, do hereby certify that I was authorized to

and did stenographically report the foregoing

deposition; and that the transcript is a true and

correct transcription of the testimony given by the

witness.

I further certify that I am not a relative,

employee, attorney or counsel of any of the parties,

nor am I a relative or employee of any of the parties'

attorney or counsel connected with the action, nor am I

financially interested in the action.



Dated this 14th day of July 2011.

(Signer's identity unknown) Signed by Phillip Loter <[email protected]> Time:

2011.07.15 13:57:49 -04'00' Reason: I am the author of this document and attest to the integrity of this

document. Location: West Palm Beach, FL

Phillip W. Loter, RMR




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